Religion & Law

I am giving a talk on Friday at St. John?s Religious Legal Theory Conference  on ?Theology and Our Constitution.? One of my preliminary points is that it is not possible to interpret the Establishment Clause in a way that would avoid contradicting someone's theology ? indeed there is major disagreement within major faith traditions about the relationship between religion and the state. I am still working on Islam in this respect. In the 46 countries with Muslim majorities 26 have something like Establishment. I wonder about inferring anything about the 20 though. In Turkey, for example, the military is largely responsible for the secular character of the state. I have yet to find a good overview about the different positions taken within Islam about the relationship between religion and the state although the Christian Science Monitor published a helpful set of views in 2007.

One of those views comes in a column by Abdullahi Ahmed An-Na`im as a precursor to his book Islam and the Secular State (which I am in the process of reading) in which he argues that ?The state should not enforce sharia (the religious law of Islam) because compliance should never be coerced by fear or faked to appease state officials. When observed voluntarily, sharia-based values can help shape laws and public policy through the democratic process. But if sharia principles are enacted as state law, the outcome will simply be the political will of the state.? I am struck by the similarity between his argument and that of Locke though Locke does not appear in the index (perhaps discussion of Locke would detract from the persuasiveness of his book to Muslims who are his primary audience). The Lockean view rules out impingements on religious liberty, but there are some state actions that those on the religious left would see as violations of Establishment (on Roger Williams grounds) that fellow travelers of Locke (think of the Roman Catholic Church - I would be grateful for comments on the differences between Locke and Murray) might see as perfectly appropriate (think of subsidies to private religious schools).